04 Jan What is Intellectual Property?
Intellectual property (IP) includes patents, copyrights, trademarks and trade secrets. IP refers to intangible creations of intellect for which a monopoly is granted to owners by operation of law. In the case of patents and copyrights, this monopoly is time limited. However, trademark monopoly rights are unlimited so long as the trademark is in use and trade secret monopoly rights are unlimited so long as the secret remains unknown to others.
Patents come in two basic varieties: utility and design. Utility patents are granted for inventions that are new, useful and non-obvious. Inventors who successfully navigate the patent application process are granted a monopoly on their idea for 20 years from the date of filing the patent application. Design patents legally protect the ornamental design of a functional object and receive federal protection for 15 years from the date of issue.
Examples of utility patents are computer apps, computer hardware, cosmetics, electrical inventions, furniture, games, jewelry, etc. Examples of design patents are spinning hubcaps, embroidered lapels on a dress, carved designs on a headboard, the shape of perfume bottles, etc.
Copyright is a form of IP that protects creative works, such as photographs, videos, books, short stories, computer programs, and architecture. Copyright law in the United States has changed significantly over time, so determining the term of a copyright can be tricky. However, copyright terms in the United States have been steady since 1978 and the current copyright protection terms are for life plus 70 years.
There is a federal Copyright Office, at which works can be registered and recorded for authenticity. Copyright exists from the moment the work is created and registration with the Copyright Office is voluntary. However, there are benefits to registration: registered works may be eligible for statutory damages and attorney’s fees in successful litigation.
Trademarks and Service Marks
A trademark is a word, phrase or symbol that identifies a specific seller’s product and distinguishes it from the product of another. When such marks are used to identify services rather than products, they are called service marks. Trademarks and service marks must be distinctive enough to identify the source or a particular good or service.
Trademarks and service marks can be protected federally and at the state level. Usually, they are protected at one or the other, but generally not both. Once trademark or service mark registration has occurred, such marks will be protected so long as the mark is in use by the registered owner.
Examples of trademarks are Reebok, Just Do It (from Nike, which is also trademarked), or Pegasus (the winged horse used to identify Mobil gas stations). Examples of Service Marks are Google, Holiday Inn, and FedEx.
In rare cases, other identifying criteria can be trademarked. Such marks are exclusively granted to very famous brands. Examples include the robin egg blue color of Tiffany & Co. and the roar of Leo the Lion, which is owned by MGM (Metro-Goldyn-Mayer film studio).
Trade secret law protects commercially valuable information that is not generally known and which is actively kept confidential. So long as the information is protected by the owner, any unauthorized release or theft will be protected by law. However, if another business or individual independently, and without engaging in any wrong-doing, discovers the trade secret, the trade secret is lost. Therefore, relying upon trade secrets to protect commercially valuable can be a risky business decision. Trade secrets are most often coupled with patents to achieve blanket protection of ideas.
Examples of trade secrets are formulas, manufacturing processes, client lists, business strategies, design concepts, and technological know-how.
Constance Rogers is an attorney and the founder of Rogers Legal Group. She represents clients in intellectual property, business, estate planning and probate, civil and criminal matters throughout the Coachella Valley.